SatinChandraPeguVs.State of Assam [2006] Insc 805 (15 November 2006)

Challenge
in this Appeal is to the order of a learned Single Judge of the Guwahati High
Court dismissing the Criminal Revision filed by the appellant.

The
background facts in a nutshell are as follows:

The
appellant was convicted for an offence punishable under Section 409 of the
Indian Penal Code, 1860 (in short the 'IPC') by learned sub-Divisional Judicial
Magistrate, Jonai.

The
allegation against the appellant was that he had mis- appropriated a sum of
Rs.91,006/-. While taking over charge as Deputy Inspector of Schools on
12.11.1991, he had received cash amounting to Rs.91,796/-, as per the accounts
maintained. When the cash was physically verified only Rs.790/-was found, and
it was, therefore, inferred that he had committed misappropriation of cash. He
faced trial for alleged commission of offence punishable under Section 409 IPC.

Questioning
his conviction and sentence of two years with fine as imposed by the trial
Court, an appeal was filed before the Sessions Court. Learned Sessions Judge, Dhemaji
dismissed the Criminal appeal upholding the conviction and the sentence
imposed. A Criminal Revision in terms of Section 397 read with Section 401 and
Section 482 of the Code of Criminal Procedure, 1973 (in short the 'Cr.P.C.')
was filed. When the matter was taken up on 12.5.2006, none appeared for the
petitioner. Therefore, learned Single Judge dismissed the revision petition
after hearing learned counsel for the State.

In
support of the appeal, learned counsel for the appellant submitted that learned
counsel who was appearing for the appellant in the High Court had been
appointed as a counsel for the State and, therefore, could not have appeared
for the appellant. Unfortunately, this position was not brought to the notice
of the appellant and, therefore, the appellant should not be made to suffer. It
is pointed out that the appellant has always pursued the remedies and there was
never any negligence on his part.

In
response, learned counsel for the State submitted that though the appellant had
not been represented by a counsel, learned Single Judge elaborately dealt with
the factual and legal position after hearing learned counsel for the State and
perusing the records.

It has
not been disputed that the learned counsel who was appearing for the appellant
in the Criminal Revision had been appointed as a counsel for the State and
could not have appeared for the appellant. There is also no material to show
that the appellant after having knowledge of such appointment of his counsel
failed to appoint another lawyer to conduct the case before the High Court.

In
view of this peculiar circumstances, it would be in the interest of justice to
set aside the impugned order of the High Court and remit the matter to it for
fresh hearing. To avoid unnecessary delay, we direct that the matter shall be
listed before an appropriate Bench on 11.12.2006 and learned Chief Justice of
the High Court shall pass necessary orders in that regard. It is undertaken by
learned counsel for the appellant that another counsel shall be engaged to
appear for the appellant before the High Court before the aforesaid date.

Since
the matter was pending before the High Court for nearly seven years, we request
the High Court to explore the possibility of disposal of the Criminal Revision
as early as practicable. Learned counsel for the appellant stated that an
application for bail shall be filed before the High Court.

Needless
to say that if such application is filed, the same shall be dealt with in
accordance with law.